Blago Lawyer: Ex-Governor Shouldn't Testify

June 14: Former Illinois Gov. Rod Blagojevich arrives for his trial in Chicago.
(AFP/Getty Images)

CHICAGO -- Since the day federal agents arrested Rod Blagojevich, the ousted Illinois governor hasn't missed a chance to proclaim his innocence. On talk shows. On stage with the comedians of "Second City." To reporters while jogging down a snow-covered street -- even while chatting with Donald Trump on reality television.

The only audience that matters is the jury hearing allegations that Blagojevich tried to sell or trade an appointment to President Barack Obama's old seat in the Senate. It's also the one audience he might never address.

Blagojevich's attorneys unexpectedly said Tuesday they could rest the defense without calling a single witness -- including the former governor -- which would leave jurors to hear nothing from him but his voice on profanity-laced wiretap recordings made by the FBI.

Should Blagojevich not testify in his own defense, he would fail to make good on his confident proclamation at the start of the trial that the jury and public alike would hear "all the things I've been dying to tell you for the last year and a half."

For months following his early morning arrest, Blagojevich told reporters "I can't wait" to take the witness stand. He left the courthouse Tuesday in silence, leaving his attorneys to explain that their loquacious client would take the night to decide for certain whether he would.

Blagojevich's attorneys said they did not believe the government had proven its case. They disagreed on whether he should testify.

"My position is that he should not go on the stand because I don't think that the government has proven their case," said the defense team's senior member, Sam Adam Sr.

His son, Sam Adam Jr., told reporters that he would prefer to see Blagojevich testify, saying the former governor is "a wonderful speaker" who is "anything but shy about saying what his state of mind was."

Blagojevich, 53, has pleaded not guilty to scheming to trade an appointment to the Senate seat for a Cabinet post in Obama's administration, an ambassadorship, a high-paying job or a massive campaign donation. He also has pleaded not guilty to scheming to launch a racketeering operation in the governor's office.

His brother, Robert Blagojevich, 54, a Nashville, Tenn., real estate entrepreneur, has pleaded not guilty to taking part in the alleged plan to sell the Senate seat and playing a role in a plot to squeeze businessmen illegally for campaign contributions.

On the stand for a second day Tuesday, Robert Blagojevich withstood a withering cross-examination in which he played cat-and-mouse with Assistant U.S. Attorney Chris Niewoehner while discussing his ties to a businessman who he says offered $6 million if the governor would appoint U.S. Rep. Jesse Jackson Jr. to the Senate seat.

Robert Blagojevich had said Monday that he viewed that offer as "outrageous -- a joke." Niewoehner repeatedly tried on Tuesday to get Robert Blagojevich to admit that he and his brother had a serious interest in the offer. Robert Blagojevich called the businessman "naive" and a "likable exaggerator."

It is rare for defendants in federal trials to testify in their own defense, as Robert Blagojevich did and as his brother pledged to do. On the recordings prosecutors played for jurors, Blagojevich was heard speculating on what he could get in exchange for Obama's former Senate seat -- guaranteeing a grueling cross-examination.

It is far from unheard of, however, for defense attorneys to rest their case without calling a single witness.

Before allowing it, a judge usually questions the defendant closely to ensure that he knows what he is doing and is sure of the decision. Judge James B. Zagel most likely will do that Wednesday morning if Blagojevich returns to court determined to have his attorneys rest their case immediately.

Blagojevich's lawyers told Zagel on Tuesday that they had decided not to call any witnesses, but the judge told them to take the night to sleep on it, a person with knowledge of the decision told The Associated Press. That person would speak only on condition of anonymity because the person was not authorized to divulge the information.

Adam Sr. scoffed at the notion there was danger in failing to fulfill the defense's pledge that Blagojevich would testify. He said prosecutors had indicated that they might call Tony Rezko, one of Blagojevich's top fundraisers, and lawyer Stuart Levine, but did not. Rezko has been convicted of launching a $7 million kickback scheme and Levine has pleaded guilty in the same case.

But the government never promised jurors that either witness would appear. Blagojevich's lawyers, however, did promise.

"I'm telling you now, he's going testify," Adam Jr. thundered during his opening statement. "He's not gonna let some chubby, four-eyed lawyer do his talking for him ... he's going to get up there and tell you exactly what was going on."

The first hint in court Tuesday that Blagojevich's lawyers might be getting ready to change direction came when Robert Blagojevich's lawyer, Michael Ettinger, told Zagel that "if they aren't going to call any witnesses, we rest." That set off a loud buzz in the spectator seats while attorneys for the government and the two defendants huddled with Zagel. A federal marshal warned spectators to be silent.

After several minutes, Zagel said the trial would adjourn until Wednesday.

As recently as Monday, Blagojevich had approached spectators outside the courtroom and said, "Show of hands: Anyone here planning on testifying?" He then thrust his own hand high in the air. Asked several times during trial breaks on Tuesday whether he would testify, he only smiled or shrugged his shoulders.

One question he did answer came from a boy touring the court building as part of a children's group. He asked the former governor if the trial had been a headache.